At, High Court of Madhya Pradesh Bench at Jabalpur
By, THE HONOURABLE CHIEF JUSTICE MR. HEMANT GUPTA & THE HONOURABLE MR. JUSTICE SANJAY YADAV
For the Appellant: Sanjay K. Agrawal, Advocate. For the Respondents: Amit Seth, G.A, R1 & R2, Jai Shukla, R.K. Tiwari, Advocates.
1. The challenge in the present appeal is to an order passed by the learned Single Bench on 16.9.2016 whereby an order passed on an application filed by the elected candidate in terms of the Order 7, Rule 11 C.P.C. by the Specified Officer, was set aside.
2. The appellant (Smt. Rani Agrawal) is an unsuccessful candidate for the election of Zila Panchayat, Singrauli, wherein the respondent No.1 (Ajay Kumar Pathak) in the present appeal was declared to be elected candidate. Smt. Rani Agrawal filed an election petition against the election of Shri Ajay Kumar Pathak. In the said petition, the elected candidate filed a petition under Order 7, Rule 11 of the C.P.C. to assert that the presentation of the election petition is not before the Specified Officer, but, before the Superintendent of its Office, therefore, it is not a proper presentation. An additional ground was taken that the rules contemplated presentation by the person filing the election petition personally, but, it has not been filed either by the candidate
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r by a person authorised to do so. Such application filed by the elected candidate was dismissed by the Specified Officer, but, such order has been set aside by the learned Single Bench.3. Aggrieved against the order of the learned Single Bench, the election petitioner is before this Court in appeal.4. The presentation of election petition is regulated by Section 122 of the M.P. Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993 (for short "the Act") and the Rules - M.P. Panchayats (Election Petitions, Corrupt Practices and Disqualification for Membership) Rules, 1995 (for short "the Rules"). Section 122 of the Act contemplates that "an election petition under this Act shall be called in question only by a petition presented in the prescribed manner". The manner of presentation of election petition is described in Rule 3 of the Rules. The extract of the Section and Rules are as under :"122. Election petition.-(1) An election under this Act shall be called in question only by a petition prescribed in the prescribed manner:-(i) In case of Gram Panchayat or Gram Sabha to the Sub-Divisional Officer (Revenue);(ii) In case of Janpad Panchayat to the collector; and(iii) In case of Zila Panchayat to the Divisional Commissioner and not otherwise.(2) No such petition shall be admitted unless it is prescribed within thirty days from the date on which the election in question was notified.(3)Such petition shall be inquired into or disposed of according to such procedures as may be prescribed.""Rule 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 petition under his own signature to be a true copy of the petition."5. It is not disputed that the Specified Officer as mentioned in Rule 3 is Divisional Commissioner. Admittedly the election petition has not been presented before the Divisional Commissioner personally, but before the Superintendent of the Office of the Divisional Commissioner. Once the election petition is contemplated to be presented to the Specified Officer, which in the present case is Divisional Commissioner, the petition has to be presented in the manner prescribed by the Rules and not in any other manner. It is so held by Supreme Court in a Judgment reported as Chandra Kishore Jha v. Mahavir Prasad, (1999) 8 SCC 266, wherein the Court held as follows:-"17. In our opinion insofar as an election petition is concerned, proper presentation of an election petition in the Patna High Court can only be made in the manner prescribed by Rule 6 of Chapter XXI-E. No other mode of presentation of an election petition is envisaged under the Act or the Rules thereunder and, therefore, an election petition could, under no circumstances, be presented to the Registrar to save the period of limitation. It is a well-settled salutary principle that if a statute provides for a thing to be done in a particular manner, then it has to be done in that manner and in no other manner. (See with advantage : Nazir Ahrnad v. King Emperor, (1935-36) 63 IA 372 : AIR 1936 PC 253 (II); Rao Shiv Bahadur Singh v. State of V.P., AIR 1954 SC 322 : 1954 SCR 1098, State of U.P. v. Singhara Singh, AIR 1964 SC 358 : (1964) 1 SCWR 57) An election petition under the Rules could only have been presented in the open Court up to 16-5-1995 till 4.15 p.m. (working hours of the Court) in the manner prescribed by Rule 6 (supra) either to the Judge or the Bench as the case may be to save the period of limitation. That, however, was not done. However, we cannot ignore that the situation in the present case was not of the making of the appellant. Neither the designated election Judge before whom the election petition could be formally presented in the open Court nor the Bench hearing civil applications and motions was admittedly available on 16-5-1995 after 3.15 p.m., after the Obituary reference since admittedly the Chief Justice of the High Court had declared that "the Court shall not sit for the rest of the day" after 3.15 p.m. Law does not expect a party to do the impossible - impossiblium nulla obligatio est - as in the instant case, the election petition could not be filed on 16-5-1995 during the Court hours, as far all intents and purposes, the Court was closed on 16-5-1995 after 3.15 p.m."6. In view thereof, the presentation of the election petition has to be before the specified Officer i.e. the Divisional Commissioner and not the receipt clerk of the Office of the Divisional Commissioner. Such presentation is not before a specified Officer competent to receive the petition, thus, cannot be treated to be proper presentation. Therefore, presentation of the election petition to the Superintendent of the Divisional Commissioner is not the proper presentation.7. The other factor which weighed the learned Single Bench is that the petition has to be presented by the person making the petition or by a person authorised in writing in this behalf making the petition.8. The argument of the learned counsel for the appellant that the election petition was presented by her which is evident from Entry 75 of the receipt Register available at page 41 of the paper book of the writ petition.9. A perusal of the election petition (P/2) shows that it is presented by the counsel. The name of the appellant does not find mention at the first page of the election petition endorsed by the Officer. Therefore, the Entry in the register that the petition is presented by the Rajendra Pandey and Rani Agrawal cannot be treated to be a presentation on behalf of the appellant when the petition endorsed by the Officer is of presentation by Rajendra Pandey alone.10. The election petition has been presented through counsel appointed by the appellant. There was no specific authorization in his favour authorizing him to file the petition in terms as contemplated by Rule 3 of the Rules. The same was not presented by her in person. Thus, there is non-compliance of the mandate of section 122 read with Rule 3 of the Rules. Therefore, the order passed by the learned single Judge cannot be said to be illegal or unwarranted in any manner.11. Learned counsel for the respondents relies upon an order passed by the learned Single Bench since reported in 2002(3) MPLJ 591 (Tara v. Dabla alias Lalita and others) wherein, Vakalatnama in favour of the counsel was said to be not proper authorization as per Rule 3 of the Rules for presentation of the election petition.12. In fact such is the ratio laid down by the Hon'ble Supreme Court in a judgment reported as G.V. Sreerama Reddy v. Returning Officer, (2009) 8 SCC 736, wherein the court held as under:-"19. One can discern the reason why the petition is required to be presented by the petitioner personally. An election petition is a serious matter with a variety of consequences. Since such a petition may lead to the vitiation of a democratic process, any procedure provided by an election statute must be read strictly. Therefore, the legislature has provided that the petition must be presented "by" the petitioner himself, so that at the time of presentation, the High Court may make preliminary verification which ensures that the petition is neither frivolous nor vexatious.20. In this context, earlier decisions of this Court regarding the interpretation of Section 81(1) must be understood. In Sheo Sadan Singh v. Mohan Lal Gautam, (1969) 1 SCC 408 in para 4, this Court held that: (SCC p. 409)"4. 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."Learned counsel for the appellant submitted that even though the "form" of the provision was not followed i.e. the petition was not presented "by" the petitioner "personally", in "substance", it was followed.21. It is to be noted that in Sheo Sadan Singh case, (1969) 1 SCC 408 it is not in dispute that the petition was presented to the Registry in the immediate presence of the petitioner. In other words, the officer authorised by the High Court had an opportunity to verify him but in the case on hand, admittedly, it was presented only by the advocate and the petitioners were not present before the Registrar (Judicial). In view of the same, the said decision is not helpful to the appellant's case. This is because the petitioner therein had, in substance, complied with the provision as strictly construed.13. In view of the above, we do not find any error in the order passed by the learned Single Bench warranting interference in the present intra-Court appeal.14. Accordingly, the appeal stands dismissed.
"2017 AIR (MP) 130,"