Rajasthan High Court - Jaipur
Smt Kalli Meena vs Rekha Devi Dhanka & Anr on 1 May, 2017
Author: Alok Sharma
Bench: Alok Sharma
HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT
JAIPUR
S.B. Civil Writ Petition No.5455/2017
Smt. Kalli Meena W/o Shri Kajod Meena,, Aged About 47 Years,
Village Piplya Bai, Post Khijuria Brahmnan, Tehsil Bassi, District
Jaipur
----Petitioner
Versus
1. Rekha Devi Dhanka W/o Shri Babu Lal Dhanka,, Barala, Post
Khijuria Brahmnan, Tehsil Bassi, District Jaipur
2. Returning Officer Through District Election Officer, Collectors
Office,, District Jaipur.
----Respondents
_____________________________________________________
For Petitioner(s) : Mr. Chandra Shekhar Sharma.
_____________________________________________________
HON'BLE MR. JUSTICE ALOK SHARMA
Order
01/05/2017
Under challenge is the order dated 04.04.2017 passed
by the Additional Civil Judge (Senior Division), Bassi (hereinafter
'the Trial Court') in Election Petition No.6/15. By the impugned
order the Trial Court has held that the election petition filed by the
respondent-election petitioner (hereinafter 'election petitioner')
was not liable to be rejected under Order 7 Rule 11 CPC for reason
of it not being presented by the election petitioner herself as
purportedly mandatorily required under Rule 81 of the Rajasthan
Panchayati Raj (Election) Rules, 1994 (hereinafter 'the Rules of
1994'). It was held that the petition had been presented by her
advocate under written authorization in terms of the Vakalatnama
which was permissible under the explanation to Rule 81(1) of the
(2 of 5)
[ CW-5455/2017]
Rules of 1994.
The issue of a valid presentation of an election petition
under the Act of 1994 came up for consideration before the
Division Bench of this Court in D.B. Civil Reference No.1/2017.
Vide order dated 20.04.2017, the said reference was disposed of
as under:-
"8. We answer the reference as under:-
An election petition presented by a
Lawyer on the strength of a Vakalatnama
would be deemed to have been duly
presented if the language of the Vakalatnama
expressly records that the Lawyer is
authorised to present the election petition.
It would then be a question of fact to
be determined by the Tribunal keeping in view
the language of the Vakalatnama. If the
language of the Vakalatnama expressly
records that the Lawyer is authorised to
present the election petition, it would be a
case of valid presentation of the election
petition."
Rule 81 of Rajasthan Panchayati Raj (Election) Rules, 1994
reads as under:-
"81. Who may present election petition:-
(1) A petition under Rule 80 may be
presented by any candidate at such election.
Explanation.- The petition shall be deemed
to have been duly presented, if it is delivered
by the person making the petition or by
person authorised in writing in this behalf by
the person making the petition.
(2) No petition shall be deemed to have
been presented under these rules unless the
petitioner deposits a sum of Rs. 500/-
alongwith the petition by way of security for
the costs of the opposite party.
(3 of 5)
[ CW-5455/2017]
(3) The petitioner shall also send a copy
of the petition under a certificate of posting to
the District Election Officer (Panchayats)
concerned."
The question as to whether an election petition under
the Act of 1994 has been presented by a counsel on behalf of the
election petitioner after due authorization in writing is thus a
question of fact to be determined in each case. In the instant case
a reference to the "Vakalatnama" as appended to the additional
affidavit filed by the petitioner-returned candidate (hereinafter
'returned candidate') before this Court evidences that the election
petitioner had authorized her counsel to file the election petition
against the returned candidate. The term of the Counsel's
engagement reads as under:-
'kqYd ij vfHkHkk"kd fu;qDr dj izfrKk djrk
g¡w@djrh gw¡ fd mDr vfHkHkk"kd dh okn]
oknksÙkj] vihy] vkosnu&i= iqujikoyksd] iqu%
fopkj iqu% LFkkiuk la'kks/ku o vfHk;ksx ;kfpdk;sa
ij gLRkk{kj djsaA vkSj izLrqr djsa fyf[kr
izek.k&i= izLrqr djsa ys[k&i= jktiqLrd foHkkx
esa izLrqr djsa vkSj ysa izekf.kr izfrfyfi ys]
mÙkjkf/kdkjh gksus dk izek.k i= izLrqr djsa]
leFkZu djsa la;qDr O;kikj lfefr dk jkt-
iqLrdky; djkosa] 'kiFk&i= izLrqr djsa le>ksrs
o izfrHkwfr nsdj izek.khdj.k djkosa] dks"k U;k;y;
o vU; foHkkx jkT; ls :i;k ns o ysdj
izek.khdj.k djkosa] iap fu'p; djsa vkSj iapk;rh
fu.kZ; dk izek.kh dj.k djkosa fdlh fMxzh dk
izorZu djkosa vkSj izek.k&i= ?kks"k foØ; ys
fujh{k.k&i= laxzg djsa vU; vfHkHkk"kd o
izfrfnu fu'p; 'kqYd ij i{k leFkZu ds fu;r
djsa o vU; dk;Zokgh vfHkHkk"kd djsa og viuh
Lo;a dh dk;Zokgh ds leku Lohdkj gksxkA
(4 of 5)
[ CW-5455/2017]
fu;fer vnkyr esa mifLFkr gksus dh rkjh[k is'kh
dh tkudkjh j[kus dk nkf;Ro i{kdkj Lo;a dk
gksxkA
The election petitioner thus in terms of his counsel's
engagement authorized him interalia to also present the election
petition on her behalf. There was no material on record before the
Trial Court nor is there before this Court to establish that at the
time the election petitioner engaged her counsel under the
aforesaid 'Vakalatnama', she was engaged in other litigation with
the returned candidate to which the 'Vakalatnama' could relate. I
find no force in the contention of the counsel for the petitioner
that the words 'election petition' not being set out specifically in the Vakalatnama it cannot therefore relate thereto. An engagement of counsel by a client is a contract of agency. It is well settled that a contract of agency like any other has express conditions and can also have conditions necessarily implied contextually. The 'Vakalaltnama' quoted above specifically authorizes the counsel interalia to present the petition filed by the election petitioner against the returned candidate--who is named as a defendant their in.
I am of the considered view that in the overall facts of the case as obtaining, on the construction of the Vakalatnama signed by the election petitioner it is evident that her counsel was clearly authorized in writing to present the election petition on her behalf against the returned candidate, following his election to the post of Sarpanch, Village Piplya Bai Post Khijuria Brahmnan, (5 of 5) [ CW-5455/2017] Panchayat Samiti Bassi. The election petition was validly filed by counsel on behalf of election petitioner in terms of the explanation to Rule 81(1) of the Rules of 1994.
Consequently there is no illegality or perversity or for that matter any error of jurisdiction attributable to the impugned order dated 04.04.2017.
The petition therefore stands dismissed.
(ALOK SHARMA), J.
Himanshu Soni
9.