Madhya Pradesh High Court
Smt. Guddi vs The Prescribed Authority Cum Sub ... on 8 December, 2016
WP-14022-2015
(SMT. GUDDI Vs THE PRESCRIBED AUTHORITY CUM SUB DIVISIONAL OFFICER)
08-12-2016
Shri Ashok Kumar Singh, Advocate for the petitioner.
Shri Divesh Jain, Government Advocate for the respondents no. 1, 4, 5
and 6 / State.
Shri Anand Shukla, Advocate for the respondent no. 2. The election petitioner before the specified officer under the Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993, has approached this court taking exception to the order dated 6.8.2015 passed by the specified officer while dismissing the election petition under section 122 of the Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993 for the reason of non-compliance of the mandatory requirement of Rule 3 (2) of the M.P. Panchayats (Election Petitions, Corrupt Practices and Disqualification for Membership) Rules, 1995 (in short 'Rules, 1995') in the matter of submission of copy of the attested election petition under his own signature to be a true copy of the petition.
The facts relevant for disposal of this writ petition are that an election petition was filed on 2.2.2015 assailing election of the respondent no.2 returned candidate on the post of Sarpanch of Gram Panchayat Taricharkhurd, Tahsil Niwadi, District Tikamgarh on several grounds. The election was held on 13.1.2015 and the result was declared on 17.1.2015.
On receipt of notice along with copy of the election petition, the respondent no. 2 had filed an objection on 17.6.2015 under Rule 3 (2) of the Rules, 1995, inter-alia raising two fold submissions that the copy of the election petition submitted by the petitioner is not the certified copy and page 3 of the election petition does not bear the signature of the petitioner. The objection was rejected by the specified officer on 17.6.2015 primarily on the premises that the election petition was at advance stage of trial and fixed for arguments. Challenging the aforesaid order, the respondent no. 2 â returned candidate filed writ petition in this court. The same was registered as W.P.No.8986/2015. This court while disposing of the writ petition on 21.7.2015 had directed the specified officer to deal with the objection raised under Ruler 3 (2) of the Rules, 1995 on merits at the time of finally deciding the election petition. It appears the aforesaid objection was taken into consideration by the specified officer. On perusal of the record found that the petitioner's signatures are not found at page 3 of the copy of the election petition, therefore, the copies submitted by the petitioner's could not be said to be duly attested true copy of the election petition; mandatory requirement of Rule 3(2) of the Rules, 1995, consequently, dismissed the election petition by the impugned order. Questioning the legality, validity and propriety of the aforesaid impugned order, learned counsel for the petitioner has made following submissions :-
(I) As per the record available only copies in excess to the copies of the election petition served upon the respondents, signature of the election petition is not found at page 3 of the election petition, therefore, even if , there is non-compliance of the Rule 3 (2), the same shall have no bearing, resulting into dismissal of the election petition.
(ii) The respondent no. 2 himself has not stated specifically that in the copy of the election petition served upon him, signature of the election petitioner is not found at page 3 of the election petition.
Therefore, such an objection ought not to have been countenanced on behalf of the respondent no. 2. The omission of signature of the petitioner at page 3 of the copy of the election petition is a curable defect and the petitioner ought to have been permitted to correct the same. That having not been done, the specified officer has refused to exercise his jurisdiction and thereafter passed the impugned order dismissing the election petition.
Per contra, learned counsel for the respondents have made following submissions :-
(a) Referring to the objection filed before the specified officer, Annexure-P-6, dated 17.6.2015, learned counsel for the respondents submitted that the objection raised on the basis of copy of the election petition served upon the respondent no. 2 wherein the signature of the petitioner was not found at page 3 of the election petition. That apart, copy of the election petition also did not bear stipulation as duly attested true copy of the election petition under signature of the petitioner served upon the respondent no. 2. Therefore, two fold objections raised are based on the copy served upon the respondent no. 2 and not on the basis of extra copies available in the record of the specified officer.
(b) Requirement of Rule 3 (2) of the Rules, 1995 is mandatory in nature, non-compliance whereof entails dismissal of the election petition as provided for under Rule 8 of the Rules, 1995. Learned counsels vehemently denied that the defect found in the copies of the election petition was a curable defect.
With the aforesaid submissions, learned counsels for the respondents pray for dismissal of the writ petition.
Heard.
Before adverting to the rival contentions advanced on facts, it is expedient to deal with nature of Rule 3 of the Rules, 1995 in the context of the scheme of the Rules as a whole. Rule 3 deals with presentation of election petition and lays down the procedure for presentation of the election petition with details of the requirements to be fulfilled before presentation. Rule 3-A, prescribes for proper attestation of the petition. Rule 4 prescribes parties to the petition. Rule 5 prescribes contents of the petition. Rule 6 prescribes for relief that may be claimed by the petitioner. Rule 7 prescribes deposit of security and Rule 8 prescribes procedure on receiving petition as under
:-
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.
A careful reading of the aforesaid rules, it is aptly clear that the legislature in its conscious decision has prescribed that non-compliance of the rule 3 or rule 4 or rule 7 shall entail dismissal of the election petition by the specified officer. Of-course, before such election petition is dismissed under this rule, the petitioner is required to be given an opportunity of hearing. As such requirement of Rule 3 is mandatory in nature and by no stretch of imagination can be said to be directory. As a consequence thereof, non-compliance of Rule 3; particularly Rule 3 (2) as relevant in this case shall result into dismissal of the election petition.
Objections of non-compliance of the Rule (3) raised by the respondent no. 2 in his objection dated 17.6.2015 has to be understood with reference to the copy of the petition received by him as there is nothing on record to suggest that copy of the election petition served upon the respondent no. 2 did bear signature of the election petitioner at page 3 and also bore her signature in the last page as duly attested true copy of the election petition under her signature. Learned counsel for the petitioner is not able to substantiate the aforesaid assertion. That apart, there is specific objection being raised of non-compliance of Rule 3 in the objection dated 17.6.2015. Therefore, the judgment relied upon by the petitioner in the case of Natthulal vs. Shakuntalabai and another, 2011 (2) MPLJ 424 is of no assistance as in that case there was no such specific objection raised before the specified officer related to Rule 3.
The specified officer has decided the objection in accordance with law and in compliance of the order passed by this court on 21.7.2015 in W.P.No.8986/2015. In view of the aforesaid facts and circumstances, this court finds no reason to hold that the specified officer acted illegally and in excess of its jurisdiction warranting interference under Article 227 of the Constitution of India.
Consequently, writ petition sans merits is hereby dismissed. Record placed before this court has been handed over back to Shri Divesh Jain, learned Government Advocate to be returned to the concerned authority.
(ROHIT ARYA) JUDGE JP