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Babulal and anr. Vs. State of M.P. and ors. - Court Judgment

LegalCrystal Citation
SubjectElection
CourtMadhya Pradesh High Court
Decided On
Case NumberMisc. Petn. No. 278 of 1984
Judge
Reported inAIR1986MP49
ActsMadhya Pradesh Panchayat Act, 1981 - Sections 117; Madhya Pradesh Panchayats (Election Petition, Corrupt Practices and Disqualification for Membership), Rules 1962 - Rules 7 and 8
AppellantBabulal and anr.
RespondentState of M.P. and ors.
Appellant AdvocateR.C. Lahoti, Adv.
Respondent AdvocateP.D. Agrawal and ;N.P. Mittal, Advs.
DispositionPetition allowed
Cases ReferredM. Karunanidhi v. H.V. Handa
Excerpt:
.....about non-compliance -the non-compliance may come to its knowledge -in any manner. 12. in the above view of the matter, we hold that even when no objection is raised about the non-compliance of rule 7 of the election rule, it is incumbent on the tribunal to dismiss the petition on being satisfied about the non-compliance of that rule......corrupt practices and disqualification for membership) rules, 1962 (hereinafter referred to as the election rules), which, by virtue of section 25 of the madhya pradesh general clauses act, are the rules under the act and in force as such. it is not necessary for us to deal with the other grounds on which the co-option, in question, has been challenged inasmuch as the petition can be disposed of only on this ground.5. the contention of the learned counsel for respondents nos. 3 and 4, in counter, is that the objection about the deficiency in the deposit of the security amount is not entertainable in the present petition as it was not raised before the tribunal and, therefore, should be deemed to have been waived.6. the learned counsel for the petitioners, in elaboration of his argument,.....
Judgment:

U.N. Bhachawat, J.

1. This is a petition under Articles 226 and 227 of theConstitution, whereby the petitioners seek a writ of certiorari for quashing the order dated 11th May, 1984 (AnnexureP4) of the. Prescribed Authority (hereinafter, for short, referred to as the Tribunal) under Section 117 of the Madhya Pradesh Panchayat Act, 1981 (hereinafter, referred to as the Act) (the Sub-Divisional Officer, Raghogarh), whereby it has set aside the co-option under Section 117 of the Act of petitioner No. 2.

2. The short facts, leading to the present petition are these : The matter relates to the constitution of Gram Panchayat, Guruji-ka-Khejra. After the election of the Panchas, a meeting of the elected Panchas was held on 6th July, 1983 for co-option, wherein petitioner No. 2, namely Kapuribai and one Halkibai were co-opted as the Panchas of the said Panchayat.

2.01. This co-option was notified on 22nd July, 1983. Respondent No. 3, being aggrieved by the aforesaid co-option, filed a petition, challenging the said co-option, before the Tribunal by presenting a petition on 5th of Aug., 1983 under Section 117 of the Act. A copy of the petition that was filed before the Tribunal is Annexure P1. To iterate, vide this petition, the co-option of both the co-opted panchas, namely, Kapooribai -- petitioner No. 2 and Halkibai, was challenged, to quote :

(A) 'Yachika Swikar Ki jave (B) Mahila Panch Shrimati Halkobai Va Shrimati Kapooribai Ki Chunav Avaidh Ghoshit Kiya Jave'.

Along with this petition, the security amount of Rs. 50/- was deposited, a fact mentioned in the petition itself, to quote :

'Nirvachan yachika Ke Sath 50/- Rupaye Lagat Ke Pratibhuti Ki Rakam 50/- Rupaye Prastut Hain. Jo Jama Kiye Jane Ki Kripa Karen.'

2.02. The co-option was challenged on the grounds mentioned in Clause 4 of the petition, namely, that the presiding officer at the polling booth, affixed the seal for voting on the ballot papers contrary to the instructions of the voters Ramkishan and Nanka. This petition has been allowed vide the impugned order Annexure P4.

3. In the light of the rival arguments advanced by the learned counsel of the partiesand in the light of the view that we are taking, it is not necessary to detail herein the findings of the Tribunal,

4. Being aggrieved by the impugned order, this petition has been filed. In the petition, various grounds have been raised, one of them being that the petition Annexure P1 was not a validly presented petition inasmuch as, at the time of the presentation of the petition, the petitioners did not deposit with the Tribunal the full sum of Rs. 100/- which was imperative under Rule 7 of the Madhya Pradesh Panchayats (Election Petition, Corrupt Practices and Disqualification for Membership) Rules, 1962 (hereinafter referred to as the Election Rules), which, by virtue of Section 25 of the Madhya Pradesh General Clauses Act, are the rules under the Act and in force as such. It is not necessary for us to deal with the other grounds on which the co-option, in question, has been challenged inasmuch as the petition can be disposed of only on this ground.

5. The contention of the learned counsel for respondents Nos. 3 and 4, in counter, is that the objection about the deficiency in the deposit of the security amount is not entertainable in the present petition as it was not raised before the Tribunal and, therefore, should be deemed to have been waived.

6. The learned counsel for the petitioners, in elaboration of his argument, relying on Rule No. 8 of the Election Rules, submitted that the provision contained in Rule 7 is mandatory; and it constitutes one of the essential steps in the valid presentation of a petition under Section 117 of the Act read with Rule 3 of the Election Rules.

7. The learned counsel for respondents Nos. 3 and 4, in his counter argument, submitted that the proviso to Rule 8 of the Election Rules which provides : 'provided that the petition shall be dismissed without giving the petitioner an opportunity of being heard' tacitly indicates that raising of an objection by the respondent about the non-compliance is imperative, otherwise, it shall not be considered. In elaboration of this submission, he argued that but for the objection, the non-compliance would not come to the notice of the Tribunal and the question of giving an opportunity of hearing to the petitioner would not arise and, thus, the proviso would beredundant. In further elaboration of' his argument, he submitted that the requirement of the deposit of security amount under Rule 7 of the Election Rules is for the benefit of the respondents to the petition, that is, to secure the payment of their costs in the event of the petition being dismissed. He drew strength in support of his argument from Rule 27A of the Election Rules. On this submission, he contended that if the respondent, for whose benefit the provision is made, does not raise the objection for the non-compliance, he should be deemed to have waived it.

8. To decide the rival contentions, we are required to have a look at the provisions contained in Section 117 of the Act and Rules 3, 4, 7 andS of the Election Rules. These provisions are set out herein below so far as relevant in juxtaposition with pari materia provisions contained in the Representation of the People Act:

Section 117 of the Act:

'117. Election Petition-- (1) An election or co-option under this Act shall be called into question only by a petition presented to the prescribed authority, and not otherwise.

(2) No such petition shall be admitted unless it is presented within fifteen days from the date on which the election or co-option in question was notified.

(3) Such petition shall be enquired into or disposed of according to such procedure as may be prescribed.'

'Rule of the Election Rules :

Section of the Representation of thePeople Act:

3. Presentationof election petition.- (1) An 'electionpetition shall be presentedto the prescribed authority during the office hours by the person making thepetition, or by a person authorised in writing in this be-half by the personmaking the petition.

81. Presentationof petitions.- (1) An electionpetition calling in question any election may be presented on one or more ofthe grounds specified in sub-section ( 1 ) of section 100 and section 101 to the High Court by anycandidate at such election or any elector within forty-five days from, butnot earlier than, the date of election of the returned candidate, or if thereare more than one returned candidate at the election and the dates of theirelection are different, the later of those two dates.

2. Every electionpetition shall beaccompanied 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.

Explanation.- In this sub-section 'elector' means a person whowas entitled to vote at the election to which the election petition relates,whether he has voted at such election or not.

(3) Every electionpetition shall beaccompanied 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 tobe a true copy of the petition.

4. Parties to thepetition.- Where the petitioner in addition to claiming a declaration thatthe election or co-option of all or any of the returned candidate is void,claims a further declaration that he himself or any other candidate has been duly elected or co-opted, he shall join as respondents to his petition all other candidates whowere nominated at the election or co-option.

82. Parties to thepetition.- A petitioner shall join asrespondents to his petition -

(a) Where the petitioner, in additionto claiming a declaration that the election of all or any of the returnedcandidates is void, claims a further declaration that he himself or any other candidate hasbeen duly elected, all the contesting candidates other than the petitioner, and where no such furtherdeclaration is claimed, all the returned candidates; and

(b) any other candidate against whom allegations of any corruptpractice are made in the petition.

7. Deposit ofsecurity.- At the time of presentation of an election petition, thepetitioner shall deposit withthe prescribed authority a sum of fifty rupees as security ' for cost ofpetition. Where the election or co-option of more than one candidate iscalled in question, a separate deposit of an equivalent amount shall be required in respect of each such returnedcandidate.

117. Security forcosts.- (1) At the time ofpresenting an election petition, the petitioner shall deposit in the High Court inaccordance with the Rules of the High Court a sumof two thousand rupees as security for the costs of the petition.

(2) During thecourse of the trial of an election petition, the High Court may, at any time, call upon the petitioner to give suchfurther security for costs as it may direct.

8. Procedure onreceiving petition.- If the provisions of rule 3 or rule 4 or rule 7 have not been complied with. The prescribedauthority shall dismiss thepetition : Provided that the petitionshall not be dismissed without giving the petitioner anopportunity of being heard.

86. Trial ofelection petitions.- (l)The High Court shall dismiss anelection petition which does not comply with the provisions of section 81 or section 82 or section 117.'

9. We now proceed to dwell upon theinterpretation of the provisions contained inRules 7 and 8 of the Election Rules and theeffect of its non-compliance as in the instantcase, we are concerned with these rules.

9.01. The first question for consideration is whether the provision contained in these rules are mandatory or directory. There is no cut and dried formula, applying which as an universal rule, it can be determined whether a provision is mandatory or directory. Lord Campbell has said :

'No universal rule can be laid down as to whether mandatory enactments shall be considered directory only or obligatory with an implied nullification for disobedience. It isthe duty of Courts of Justice to try to get at the real intention of the legislature by carefully attending to the whole scope of the statute to be considered.'

However, the generally accepted principles are :

(1) When the consequence of nullification on failure to comply with a prescribed requirement is provided in the statute itself, it has unhesitatingly to be interpreted to be mandatory; and

(2) if the object of the enactment will be defeated by holding the provision to be directory, then also, it has to be construed as mandatory.

9.02. We proceed to examine the rules under consideration on the touch-stone of the aforesaid well-settled canons of construction. In Rule 7, the governing expression is 'shall deposit' and for failure with this, the petitioner is visited with the penalty of dismissal of the petition as provided in Rule 8. It cannot be gainsaid that obviously, the provision about the deposit of security amount along with the presentation of the petition has been provided as a matter of public policy. It is certainly a wholesome one, in that in a democratic set up, based on representation, while providing the remedy of election petition for questioning the election so as to maintain the purity of election, it attempts to put a stop to useless and harassing litigation against the returned candidate.

9.03. In the above view of the matter, the irresistible conclusion is that the provision of Rule 7 is mandatory.

10. We now turn to the consideration of the question whether the power under Rule 8 of dismissal of the petition for non-compliance of Rule 7 is exercisable only when an objection regarding that is raised by the respondent, otherwise it would be deemed to have been waived.

10.01. On a plain reading of Rule 7 the requirement of making the deposit of security amount is along with the petition the expression : 'At the time of presentation of an election petition,' in Rule 7 is very significant. Thus, the requirement of deposit of security amount along with the petition is an essential link in the chain of presentation of the petition. Therefore, if this link is missing, there is novalid presentation of the petition. The Tribunal has a jurisdiction only when there is a validly presented petition before it.

11. In Rule 8, the expression used is the prescribed authority shall dismiss the petition'. This clearly means that duty is cast on the Tribunal to dismiss the petition on the non-compliance of the provisions enumerated in Rule 8. It is an important provision. The Tribunal has no option, but to dismiss the petition, on being satisfied about non-compliance -- the non-compliance may come to its knowledge -- in any manner. From the language of Rule 7 it appears that as a petition being presented, the Tribunal should verify before taking its cognizance and proceeding with the trial, whether security amount is deposited along with it or not. The proviso to Rule 8 of the Election Rules cannot be read to mean that the Tribunal has the jurisdiction to dismiss for non-compliance of the provisions mentioned in the parent provision of Rule 8 only when an objection is raised by the respondent. To hold that the Tribunal can dismiss for non-compliance only when objection is raised by respondent, would mean adding something which is not there in the Rule and taking out the jurisdiction of the Tribunal. The proviso is nothing but expresso verbis incorporation of the audi alteram partem rule of natural justice. To uphold the argument of the learned counsel for respondent Nos. 3 and 4 would tantamount to holding that a petition though suffering from the non-compliance of the rules referred to in the parent Rule 8 of the Election Rules can never be dismissed when no one appears to oppose the petition and it is proceeding ex parte. Further, the question of waiver also does not arise in view of the fact that we have held the provision as mandatory and a compulsion on the petitioner based on public policy.

12. In the above view of the matter, we hold that even when no objection is raised about the non-compliance of Rule 7 of the Election Rule, it is incumbent on the Tribunal to dismiss the petition on being satisfied about the non-compliance of that rule. It has no jurisdiction to proceed with its trial.

13. We have extracted hereinabove in paragraph 7 of this Order, the pari materia provisions of the Representation of the People Act, 1951. In Perth Local Board v. Maley, (1904) 1 CLR 702, 715. Griffith, C.J. said :

'It is usual to credit the legislature with a knowledge of the existing law on the subject dealt with; and when we find that such a meaning has been constantly attributed to the word 'necessary' in other Acts dealing with similar matters, they may have reasonably expected that the word would in this Act be construed as having the same meaning. Against that construction no authorities have been cited.' Thus, relying on this doctrine of interpretation of statutes in pari materia, it would be useful to refer to the following decision of their Lordships of the Supreme Court where Section 117 and 86(1) of -the Representation of the People Act, a law on the same subject and which was in existence at the time of enacting the Act. This decision buttresses and reinforces our conclusion. M. Karunanidhi v. H.V. Handa, AIR 1983 SC 558. The relevant excerpt from the above decision reads as under : -- 'The requirement regarding the making of a security deposit of Rs. 2,000/- in the High Court is mandatory, the non-compliance of which must entail dismissal in limine of the election petition under Sub-section (1) of Section 86 of the Act.'

14. In the light of the foregoing discussion, the petition presented was not a valid one in view of the admitted position that though Rs. 100/- were required to be deposited only Rs. 50/- were deposited as security deposit. The Tribunal had to dismiss the petition and had no jurisdiction to proceed with it. There was an error apparent on the face of the record committed by the Tribunal, inasmuch as in the petition itself, it was mentioned that only Rs. 50/- were being deposited by way of security, whereas admittedly the security deposit of the two respondents whose co-option was challenged, that is, Rs. 100/- were required to be deposited. On account of this deficiency in the security deposit, there was no validly presented petition before the Tribunal and thus, the Tribunal had no jurisdiction to proceed.

15. The upshot of the above discussion is that it is a fit matter where this Court should exercise its jurisdiction under Article 226 and 227 of the Constitution of India and quash the impugned order Annexure P/4. We accordingly allow the petition and quash that order. We make no order as to costs. Outstanding amount of security be refunded to the petitioners.


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