Madhya Pradesh High Court
Tara vs Dabla Alias Lalita And Ors. on 26 February, 2002
Equivalent citations: 2002(2)MPHT554
Author: Dipak Misra
Bench: Dipak Misra
ORDER Dipak Misra, J.
1. By this writ petition preferred under Articles 226 and 227 of the Constitution of India the petitioner has prayed for issue of a writ of certiorari for quashment of the order dated 16-12-2000, Annexure P-4, passed by the Specified Officer under provisions of the M.P. Panchayats (Election Petitions, Corrupt Practices and Disqualification for Membership) Rules, 1995 (hereinafter referred to 'the Rules').
2. The facts as have been adumbrated are that the petitioner was elected as Sarpanch of the Gram Panchayat Thandi, District Betul in the year 1999. The respondent No. 1, being aggrieved by the victory of the petitioner in the election, assailed the same by initiating a proceeding under Section 122 of the M.P. Panchayat Raj Avam Gram Swaraj Adhmiyam, 1993. The election petition was prepared and verified on 21-2-2000 and was presented through the counsel on 25-2-2000. The order-sheet dated 25-2-2000 bears the signature of the clerk of the counsel but does not bear the signature of the respondent No. 1, the election petitioner. As the presentation was invalid the petitioner filed an application before the respondent No. 8 assailing the maintainability of the petition. The respondent No. 8, the Election Tribunal, did not appreciate the challenge in proper perspective and rejected the preliminary objection by order dated 16-12-2000.
3. Assailing the aforesaid order it is contended by Mr. Mukhtar Ahmad, learned counsel for the petitioner that as the presentation was not in accordance with the Rule 3 of the Rules, the command of Rule 8 will apply in full force and the election petition is to be dismissed being not properly presented. In support of the submission the learned counsel has placed reliance on the decision rendered in the case of Suman Santosh Kumar Patel v. Bhanwati Mahesh Pratap Patel and Anr., 1999(1) MPLJ 88.
4. Mr. Pranay Gupta, learned counsel for the respondent No. 1 has submitted that the election petition was presented by the counsel who was authorised by the election petition.
5. It is apposite to mention here that when the aforesaid controversy was debated Mr. Gupta, learned counsel for the respondent No. 1 assiduously contended that in the 'Vakalatnama' a specified authorisation was given to present the election petition. Keeping in view the aforesaid submission this Court directed for production of the relevant record so that the 'Vakalatnama' in question could be looked into. The said file has been made available by Mr. P.D. Gupta, learned Deputy Advocate General for the Stale. Before I proceed to deal with the factum of authorisation, it is apposite to refer to Rule 3 of the Rules. It reads as under :--
"3. Presentation of election petition.-- (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 authorised 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 a true copy of the petition."
According to the aforesaid rule an election petition is required to be presented before the Prescribed Officer by the person making the petition or by a person authorised in writing in this behalf.
Rule 8 reads as under :--
"8. 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 Officer:
Provided that the petition shall not be dismissed under this rule without giving the petitioner an opportunity of being heard."
6. In the case of Suman Santosh (supra), it has been held as under:--
"...... 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 Office 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, can not 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 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 therefor."
After so holding the learned Single Judge reproduced the contents of 'Vakalatnama' and came to hold that the 'Vakalatnama' in question in that case did not make authorisation authorising the counsel concerned for presenting the election petition before the Sub-Divisional Officer. Analysing in the aforesaid manner the learned Single Judge in Paragraph 11 held as under:--
"11. In view of the above, it is held that the presentation of the election petition was not in accordance with the requirement under Sub-rule (1) of Rule 3 of the 1991 Rules and as a consequence whereof it was liable to rejection under Rule 8. In view of this the election petition ought to have been rejected as not having been properly presented."
7. 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 petitioner 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 petitioner. 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 can not 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.
8. In view of the aforesaid premises the present writ petition deserves to be allowed and it is accordingly allowed. The impugned order passed by the Sub-Divisional Officer-cum-Spccified Officer on 16-12-2000 vide Annexurc P-4 is quashed. The election proceeding initiated by the respondent No. 8 is to be treated as not maintainable. However, there shall be no order as to costs.