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Madanlal Vs. Champalal and ors. - Court Judgment

LegalCrystal Citation
SubjectElection
CourtMadhya Pradesh High Court
Decided On
Case NumberEx. Petn. No. 3 of 1980
Judge
Reported inAIR1982MP108
ActsRepresentation of the People Act, 1951 - Sections 81 and 87; Madhya Pradesh High Court Rules - Sections 1, 2, 6, 7 and 9; States Reorganization Act, 1956 - Sections 51; Constitution of India - Article 225
AppellantMadanlal
RespondentChampalal and ors.
Appellant AdvocateY.I. Mehta, Adv.
Respondent AdvocateV.S. Kokie and ;C.L. Yadav, Advs.
DispositionApplication dismissed
Cases ReferredDin v. Abdul Gani Lone
Excerpt:
.....considered necessary shall be endorsed in the margin of first page of the petition by the deputy registrar under his own signature. mohan lal it has been held that though in that case the election petition under the said representation of the people act was presented to the registry by advocate's clerk in the immediate presence of the petitioner, in substance though not in form, the petition was presented by the petitioner himself and hence the requirement of the law was fully satisfied. if the object of law is to be defeated by non-compliance with it, it has to be regarded as mandatory. whenever a statute prescribes that a particular act is to be done in a particular manner and also lays down that a failure to comply with the said requirement leads to a specific consequence, it..........presented before the additional registrar (judicial) high court of m. p. jabalpur and not to the deputy registrar (judicial) according to the rules framed by the high court relating to election petitions.2. in order to appreciate the points raised in this application, it is necessary to refer to the provisions of section 81 of the representation of the people act, 1951, relating to presentation of petitions which is as under:'81. presentation of petitions -- (1) an election petition calling in question any election may be presented on one or more of the grounds specified in sub-section (1) of section 100 and section 101 to the high court by any candidate at such election or any elector within forty-five days from, but not earlier than, the date of election of the returned candidate, or.....
Judgment:
ORDER

P.D. Mulye, J.

1. This order shall govern disposal of I. A. No. 1 of 81, which is an application filed under Section 86 of the Representation of the People Act, 1951 by respondent No. 1 praying that the petition deserves to be dismissed on theground that the same was presented before the Additional Registrar (Judicial) High Court of M. P. Jabalpur and not to the Deputy Registrar (Judicial) according to the Rules framed by the High Court relating to election petitions.

2. In order to appreciate the points raised in this application, it is necessary to refer to the provisions of Section 81 of the Representation of the People Act, 1951, relating to presentation of petitions which is as under:

'81. Presentation of petitions -- (1) An election petition calling in question any election may be presented on one or more of the grounds specified in Sub-section (1) of Section 100 and Section 101 to the High Court by any candidate at such election or any elector within forty-five days from, but not earlier than, the date of election of the returned candidate, or if there are more than one returned candidate at the election and the dates of their election are different, the latter of those two dates.

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

* * * * (3) 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.'

A bare reading of this section provides that the petition has to be presented to the High Court.

3. Section 87 of the said Act, which prescribes the procedure before the High Court is as follows;

'87, Procedure before the High Court--(1) Subject to the provisions of this Act and of any rules made thereunder, every election petition shall be tried by the High Court, as nearly as may be, in accordance with the procedure applicable under the Code of Civil procedure, 1908 (5 of 1908) to the trial of suits:

Provided that the High Court shall have the discretion to refuse, for reasons to be recorded in writing, to examine any witness or witnesses if it is of the opinion that the evidence of such witness or witnesses is not material for the decision of the petition or that the party tendering such witness or witnesses is doing so on frivolous grounds or with a view to delay the proceedings.

(2) The provisions of the Evidence Act, 1872 (1 of 1872), shall, subject to the provisions of this Act, be deemed to apply in all respects to the trial of an election petition.'

4. Rules relating to election petitions have been framed by the High Court of Madhya Pradesh under Notification No, 1317-1-14-2-67 1317-1-14-2-67 , Jabalpur, the 2lst Feb. 1967, in exercise of the powers conferred by Article 225 of the Constitution and all other powers hereinto (hereinbefore ?) enabling and in notification in earlier orders issued by the Chief Justice under Section 51 of the States Reorganization Act, 1956, relating to election petitions presented under the Representation of the People Act, 1951, which came into force from 22nd Feb. 1967, on the day they were published in M. P. Rajpatra. Rule 6, Rule 7 and Rule 9 of these Rules are as follows :

'6. (1) Every Election Petition, complete in all respects, shall be presented during the Court hours to the Deputy Registrar (Judicial) at Jabalpur.

(2) The name of the person presenting an Election petition, with a description of the capacity in which he is presenting it, the date and hour of presentation and any other particulars considered necessary shall be endorsed in the margin of first page of the petition by the Deputy Registrar under his own signature.

(3) The Deputy Registrar shall have petition examined in order to find out that all requirements of the Representation of the People Act, 1951, and these rules have been complied with.

(4) The Deputy Registrar shall affix his full signature to every page of the petition and the affidavit accompanying it.

(5) The Deputy Registrar, after examining the petition, shall record his opinion on the opening order sheet in the following form:--

'Presented on...by...properly drawn up, apparently within time and properly stamped.' '7. As soon as may be after an Election Petition is presented and scrutinised as above, the Deputy Registrar shall place the same before the Chief Justice for orders under Sub-section (2) of Section 80A of the Representation of the People Act, 1951.

* * * * 9. The Rules of the High Court shall apply, in so far as they are not inconsistent with the Representation of the People Act, 1951 or the Rules, if any, made thereunder of the Civil Procedure Code or these rules, in respect of all matters including processes and process fees, issuance of orders, copies and copying fees, deposit and withdrawal of money, forms, affidavits, etc.'

5. It is no doubt true that in Rule 6 and Rule 7 the words 'Deputy Registrar (Judicial) Jabalpur' have been mentioned to whom the election petition has to be presented and it is the Deputy Registrar (Judicial) Jabalpur who has to proceed in accordance with these Rules. However, it is not in dispute that at the relevant time in July, 1980 when the said petition was presented in the High Court at Jabalpur there was no such officer working designated as Deputy Registrar (Judicial), but an officer designated as Additional Registrar (Judicial) was working at Jabalpur, to whom admittedly the said election petition was presented.

6. Relying on the provisions of these Rules the learned counsel for respondent No. 1 contended that the election petition having not been presented to the Deputy Registrar (Judicial) at Jabalpur the same deserve to be dismissed for want of proper presentation. But after considering the provisions of Sections 81 and 87 of the said Act as also Rule 9 of the Rules relating to election petitions, I am of opinion that the petition cannot be dismissed merely on the ground that the same was not presented to the Deputy Registrar (Judicial) as in Sections 81 and 87 the words used are 'High Court'. Similarly Rule 9 of the said Rules also provides that the Rules of the High Court shall also apply in so far as they are not inconsistent with the Representation of the People Act, 1951 or the Rules, if any, made thereunder of the Civil procedure Code or these Rules, in respect of all matters including processes and process fees, issuance of orders, copies and copying fees, deposit and withdrawal of money, forms, affidavits, etc. Therefore, it is not as if the Rules of the High Court shall not apply in regard to these matters, including presentation.

7. By notification No. 45-1-9-3-37 dated 12-5-1976 published in M. P. Rajpatra, dated 11-6-1976, the High Court Rules have been amended as under :

'1. Definitions. -- In these rules, unless the context otherwise requires:--

(i) 'Registrar' means the Registrar of the High Court and includes the Additional Registrar, the Deputy Registrar or any other officer with respect to such functions and duties of the Registrar as may have been assigned to the Additional Registrar, the Deputy Registrar, or such officer by the Chief Justice, and

(ii) in the absence of the Registrar the Additional Registrar, the Deputy Registrar, or any other officer authorised to act on his behalf;

2. Add the words 'Additional Registrar or' before the words 'Deputy Registrar' wherever they occur in the High Court Rules.'

According to these Rules it is apparent that the words 'Additional Registrar' have also been included before the words Deputy Registrar. Therefore, the presentation of the election petition before the Additional Registrar (Judicial) cannot be said to be improper or illegal.

8. The word 'include' is a word of enlargement. It is generally used in definitions and interpretation clauses in order to enlarge the meaning of the words and the phrases occurring in the body of the statute, and when it is so used, the words or phrases must be construed as comprehending not only such things as they signify according to the natural import, but also those things which the interpretation clause declares they shall include, as has been observed in 1957 Jab LJ 222: (AIR 1957 Madh Pra 30) (Bansilal v. Commr. of Sales-tax). Besides, in the decision reported in AIR 1969 SC 1024 Sheodan Singh v. Mohan Lal it has been held that though in that case the election petition under the said Representation of the People Act was presented to the Registry by Advocate's clerk in the immediate presence of the petitioner, in substance though not in form, the petition was presented by the petitioner himself and hence the requirement of the law was fully satisfied.

9. Similarly in the decision reported in AIR 1980 SC 303 (Sharif-ud-Din v. Abdul Gani Lone) the difference between a mandatory Rule and a directory Rule has been pointed out as under (at p. 305):--

The difference between a mandatory rule and a directory rule is that while the former must be strictly observed, in the case of the latter, substantial compliance may be sufficient to achieve the object regarding which the rule is enacted. Certain broad propositions which can be deduced from several decisions of courts regarding the rules of construction that should be followed in determining whether a provision of law is directory or mandatory may be summarised thus :

The fact that the statute uses the word 'shall' while laying down a duty is not conclusive on the question whether it is a mandatory or directory provision. In order to find out the true character of the legislation, the court has to ascertain the object which the provision of law in question is to subserve and its design and the context in which it is enacted. If the object of law is to be defeated by non-compliance with it, it has to be regarded as mandatory. But when a provision of law relates to the performance of any public duty and the invalidation of any act done in disregard of that provision causes serious prejudice to those for whose benefit it is enacted and at the same time who have no control over the performance of the duty, such provision should be treated as a directory one. Where, however, a provision of law prescribes that a certain act has to be done in a particular manner by a person in order to acquire a right and it is coupled with another provision which confers an immunity on another when such act is not done in that manner, the former has to be regarded as mandatory one. A procedural rule ordinarily should not be regarded as mandatory if the defect in the act done in pursuance of it can be cured by permitting appropriate rectification to be carried out at a subsequent stage unless by according such permission to rectify the error later on, another rule would be contravened. Whenever a statute prescribes that a particular act is to be done in a particular manner and also lays down that a failure to comply with the said requirement leads to a specific consequence, it would be difficult to hold that the requirement is not mandatory and the specified consequence should not follow.'

10. I am, therefore, of opinion that the rules framed by the High Court relating to election petitions are not mandatory but are directory because it is nowhere provided therein that a failure to comply with the said requirement leads to a specific consequence. Therefore, in the light of the provisions and the authorities referred to above. I am unable to agree with the submission of the learned counsel for respondent No. 1 that the said election petition deserves to be dismissed for not presenting the same to the Deputy Registrar (Judicial) at Jabalpur in accordance with the Rules.

11. In the result the said application (I. A. 1 of 81) stands dismissed.


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